Kagan Hearings: CFJ's Live Blogging
Kagan once again dodged the question of why she required Harvard Law students to take international law but not constitutional law. Instead, she simply restated her opinion that constitutional law should be a second year course. That begs the question of why it shouldn’t be a required second year course. For example, Professional Responsibility is a required course at Harvard Law School even though students take it in their second or third year.
You’ve got to give Sen. Franken credit for his creativity. He just defined “judicial activism” so as to exempt from that label any decision that “show[s] a special solicitude for the despised and disadvantaged” (quoting Kagan describing Justice Marshall). In other words, Franken exempts decisions that favor the little guy, consistent with the Democrats’ theme for these hearings. Ironically, Franken bases this exemption on footnote 4 of Carolene Products, which would have been one of the most blatant examples of judicial activism if it were binding law. Instead, it was merely dicta.
I don’t want the exchange about natural and preexisting rights between Kagan and Sen. Coburn to obscure the fact that one need not look outside the Constitution to conclude that the Second Amendment is a fundamental right that extends to the states, as the Supreme Court concluded in McDonald earlier this week. To put it another way, there is no principled reason for concluding that the right to keep and bear arms is any less fundamental and applicable to the states than the rest of the Bill of Rights. Yet that would have been the Court’s conclusion if Justice Sotomayor and her three liberal colleagues had had their way in McDonald.
Kagan says she agrees that evolving traditions are one of the factors courts can look to in interpreting the Constitution. Sen. Cornyn responds that it’s the job of the democratically elected legislature, not the courts, to move the law in accordance with the traditions and values of the people it represents. Instead, as Justice Scalia remarked in his Romer v. Evans (1996) dissent, it’s the evolving “views and values of the lawyer class from which the Court's Members are drawn" that the Court tends to enforce. Those who prefer the living Constitution approach to the law do so precisely because more democratic methods of moving the law – legislation and constitutional amendments – do not allow the intellectual elite to impose its values on average Americans.
Lindsey Graham says the term “judicial activism” means little more than that a case was decided contrary to how we would have liked. It’s certainly true that the Left has tried to redefine “judicial activism” that way. But it would have been much more helpful for Sen. Graham to explain the difference between true judicial activism – making stuff up, to put it in layman’s terms – and the faux “judicial activism” of the Roberts Court, i.e., moving the law closer to the text and original intent of the Constitution and statutes. Liberals may not like that strict constructionist approach to the law, but such an approach is the opposite of making stuff up.
Oy, Sen. Specter is back to complaining about the “congruence and proportionality” test for the 14th Amendment’s Enforcement Clause. It’s his favorite example of the Supreme Court allegedly giving too little deference to Congressional findings, a theme Specter seems obsessed with. We hear that theme every time Specter questions a Supreme Court nominee. I’m not sure a long-time member of Congress like Specter is in the best position to dispassionately assess whether Congress gets enough deference.
Sen. Grassley asks Kagan about gay marriage, specifically is it an issue to be decided by the states. I’m glad Grassley is focusing on the issue because, at this time, the number one goal of the purveyors of judicial activism is the discovery of a right to gay marriage in the U.S. Constitution. Given Kagan’s strong feelings about gay rights, the discovery of a right to gay marriage has to be the top concern of those who fear Kagan will be an activist judge.
In trying to defend kicking military recruiters off the Harvard Law School campus, Kagan states that the Law School’s Career Service does nothing more than provide students with information and facilitate meetings with employers. Kagan is trying to portray Career Service’s role as minimal enough to be easily substituted for. Forcing the armed forces to find a substitute is hardly the “equal” access required by the Solomon Amendment. But in any case, Kagan is downplaying the role of Career Services. I was a student at Harvard Law School shortly before Kagan became dean and I can tell you that Career Services’ role in student job hunting was paramount. Because Career Services provided access to a large and varied set of employers, most students relied entirely on Career Services in finding a job, rather than trying to discover and set up interview opportunities outside of Career Services. Sure, a highly motivated student could go outside Career Services, but that’s like saying that the segregated schools of the pre-Brown era provided an “equal” education to minority students because highly motivated black students could still get a good education.
A colleague adds the following point about Kagan’s argument that asking a student group to facilitate interviews with military recruiters was a sufficient substitute:
“Would Kagan support students seeking abortions to be referred to an unfunded social group of volunteers instead of the student health center?”11:39 am
Sen. Sessions points out that Kagan, as Solicitor General, didn’t meet even her minimal responsibility to defend federal law in a Ninth Circuit challenge to “Don’t Ask, Don’t Tell.” I note that she also fell short of that responsibility in “defending” the Defense of Marriage Act. Kagan tries to explain her decision not to appeal to the Ninth Circuit, citing the fact that it would have been an interlocutory appeal – that is, an appeal of an intermediate issue before a final decision in the case. But Sessions has already pointed out that such an explanation is in striking contrast to Kagan’s reaction to the interlocutory appeal in the Solomon Amendment case Rumsfeld v. FAIR. In kicking military recruiters off the Harvard Law School campus for the second time, Kagan not only elevated the importance of the Third Circuit’s decision in the interlocutory appeal, but ignored the fact that the decision didn’t apply to the First Circuit city of Cambridge, MA.
Outside the hearing room during the break, Sens. Cornyn, Coburn and Kyl are before the cameras. Sen. Kyl notes that the Commerce Clause is very broad, as Kagan has stated during the hearings, only because the Court has made it very broad through “interpretation.” Fortunately, Kagan conceded this morning that stare decisis is at its strongest when the Court is interpreting statutes rather than constitutional provisions like the Commerce Clause. Perhaps she will not complain if the Court restores a little bit of original intent to the Commerce Clause in striking down Obamacare’s individual mandate.
Professional comedian Sen. Franken is trying to be funny. Sadly, he is not nearly as funny as Elena Kagan has been during the hearings. I don’t like her judicial philosophy but I have to admit that I do like her sense of humor.
Sen. Franken is whining about Citizens United, like most of his Democratic colleagues on the panel. I think it’s fair to say the Democrats are obsessed with that case. Could the depth of their obsession have something to do with concern that the Court reaffirming the free speech rights of corporations will not benefit Democrats electorally? The Democrats’ rush to pass the DISCLOSE Act before November suggests that electoral concerns, more than principle, are driving the obsession.
Now that Kagan has declared that “results-oriented judging” is the “worst thing you can say about a judge,” will the Democrats retreat from the theme they’ve chosen for these hearing – that is, will they stop decrying Supreme Court decisions, such as Ledbetter, solely because the result is perceived to benefit big guys over little guys?
Update: See here for a good discussion of how the Democratic senators questioning Kagan are “peddling fables about” the Ledbetter case.